By David Bosco
Back in 2010, the members of the International Criminal Court (and a significant group of non-members) convened in Kampala, Uganda to hash out one of the thorniest issues related to the court: whether and when it should be able to prosecute state leaders for committing aggression. That conference ended with an elaborate compromise that defined aggression and allowed the ICC to prosecute the crime in certain circumstances. The United States and other large non-members insisted successfully that they shouldn’t be subject to prosecution. If one important divide at the conference was between court members and non-members, another was between the permanent Security Council members and most other states. During the negotiations, the P5 mostly managed to keep a united front and insisted on preserving a Council role in any determination of aggression.
Almost five years after the Kampala conference, the focus has shifted to how many countries will ratify the aggression amendment and whether the ICC members will vote (as they must) to finally make it operational. To date, 22 countries, mostly small, have ratified (Malta and Costa Rica are among the most recent). Since thirty ratifications is a key threshold for the amendment going into effect, countries who have delayed their decision may soon need to hop off the fence. And that may be particularly difficult for Britain and France, the two P5 members who belong to the court. As they wrestle with whether to ratify the amendment, they’ll likely be tugged between competing identities and allegiances. As court members and European Union states, they have routinely touted the court’s virtues, defended its prerogatives, and encouraged other states to join. But they will no doubt feel significant pressure from their larger P5 brethren to maintain a united (and skeptical) front regarding the court’s role in adjudicating aggression. I expect the foreign ministry legal teams in London and Paris will have some tough meetings ahead.